What happens if mediation fails?

Although mediation is the most efficient alternative to proceeding with your matter to court, and often leads to parties reaching a mutually satisfactory agreement through a non-adversarial approach, there are instances where parties cannot mutually reach an agreement. If this occurs, parties have the option to utilise their Section 60I certificate.

A Section 60I certificate is issued by an accredited FDR practitioner to both parties following a family dispute resolution (FDR) attempt and must be used within 12 months. This certificate generally suggests that an individual has sought FDR to attempt settling a parenting dispute through mediation, or that FDR was not suitable for the matter at hand.

In this instance, the Section 60I certificate allows the individual to commence court proceedings for parenting orders in the Federal Circuit and Family Court of Australia.

If a party wishes to use their Section 60I certificate to commence proceedings, the court will consider the type of certificate provided when making orders and determining potential costs. The types of certificates that an FDR practitioner may issue are outlined in Section 60I of the Family Law Act 1975 (Cth):

• a certificate to the effect that the person did not attend family dispute resolution due to the refusal, or the failure, of the other party to the proceedings to attend;
• a certificate to the effect that the person did not attend family dispute resolution because the practitioner considers that it would not be appropriate to conduct the proposed family dispute resolution;
• a certificate to the effect that the person attended family dispute resolution, and that all attendees made a genuine effort to resolve the issue or issues;
• a certificate to the effect that the person attended family dispute resolution, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues; or
• a certificate to the effect that the person began attending family dispute resolution, but that the practitioner considers that it would not be appropriate to continue the family dispute resolution.

However, there are exceptions to a Section 60I certificate that a party must consider before commencing Court proceedings, including:

• the application is made with the consent of all parties or in response to an application from another party to the proceedings; or
• the court believes that there has been or there is a risk of abuse of a child, or that there has been family violence or there is a risk of family violence; or
• the application is made in relation to a particular issue and an order has been contravened, the order has been made within the period of 12 months before the application is made, and the court believes that a party behaved in a way that shows a serious disregard to their obligations under the contravened order; or
• the application is made in circumstances of urgency; or
• one or more of the parties are unable to participate effectively in FDR due to incapacity, physical remoteness or for some other reason.

Should you decide to initiate Court proceedings to address unresolved parenting issues following mediation, we recognize the emotional and practical challenges one may face during this process.

At Greigs Legal, your priorities are paramount, and we are dedicated to offering the support needed to steer through your legal concerns with ease. Reach out to us by completing an enquiry form on our website or by calling (02) 4647 2968 for a consultation with one of our family law solicitors.